Keywords

1 Introduction

In 2005, the San Beda University Red Lions were the penultimate team in the Philippines’ National Collegiate Athletic Association (NCAA) men’s basketball tournament. The following year, the team recruited a new, promising player to end their 28-year title drought. Samuel Ekwe, a foreign student-athlete (FSA) from Nigeria,Footnote 1 helped the Red Lions win their first-ever NCAA men’s basketball championship. From then onwards, assisted by a number of other FSAs, San Beda would go on to reach the finals every year until 2019, collecting 11 championships along the way.Footnote 2

San Beda’s success would influence the next 15 years of the NCAA and its rival league, the University Athletic Association of the Philippines (UAAP), as teams established their own FSA recruitment pipelines. While they catapulted college basketball to a new level of excitement and exposure, this influx of foreign students also became a referendum on the place of foreign talent in Filipino amateur sports and their impact on the Filipino identity. After a decade of this phenomenon, the UAAP capped FSAs to just one per basketball team,Footnote 3 while the NCAA banned all FSAs from its sporting events.Footnote 4 Both organizations claimed this preserves and improves amateur basketball.

Those policies restricting FSA participation rest on arguments concerning national origin and race; they are insufficient justifications to violate fundamental tenets of equal protection and freedom from discrimination. This chapter explores potential causes of action against the NCAA and UAAP, and sees this issue as an opportunity to use judicial action to influence social norms and reinforce state commitments to equality. Nevertheless, these paths are limited by the lack of precedent and contemporary developments, as well as the framework’s intrinsic challenges.

Considering the connection between the role of basketball in Philippine culture and its role in validating and replicating cultural norms—including how Filipinos, through basketball, situate themselves in relation to the global community—the chapter argues that FSA restrictions are a manifestation of a protective and exclusionary attitude, which replicates features of the colonial relationships between the Philippines and Spanish and American colonizers, prioritizing the ruling class’ sense of worthFootnote 5 over a class comprised of persons of other descent. Despite the lack of precedents, the chapter considers that human rights legal instruments could protect FSAs and help combat the discriminatory and nationalistic dynamics that corrupt Philippine sport.

The chapter draws on news reports and commentaries that record the sentiments of key personalities in the industry; the historical and cultural attitudes towards Philippine basketball are also informed largely by the work of Rafe Bartholomew, Lou Antolihao, Satwinder Rehal, and Inez Ponce de Leon. Finally, the chapter examines these factual developments in light of the Philippine Constitution and existing laws addressing vulnerable persons, laws adjacent to FSA participation, Philippine commitments to equal protection and freedom from discrimination in international instruments, domestic legislation, and case law relevant to the topic.

This chapter leaves space to explore adjacent inquiries, such as a comparative analysis with other jurisdictions that either implement similar rules on foreigners (or have since rejected them), or the legal outcomes of intersections between the rule of law on the one hand, and nationality and race on the other. The chapter aims to serve as a baseline exploration that may assist policymakers and potential litigants towards reform. Necessarily, the chapter assumes that changes to law and policy through legal remedies can have a normative effect on social climates, which itself is a rich area of debate.

The first section of the chapter introduces Philippine basketball and Filipino identity, and traces their history and developments up to the FSA era. The second section highlights the impact of discriminatory practices on FSAs, identifies potential legal remedies, and evaluates their strengths and pitfalls While social change would be better serve to fully integrate FSAs into the Philippine basketball scene, legal remedies are worth exploring as another front to create change and uphold basic, universal human rights.

2 Introduction to Philippine Basketball

This section introduces the significance of basketball in Philippine history and culture, including its colonial past, and contextualizes the current dilemma as a reenactment of colonial dynamics in the modern day. The broader, sociological elements are drawn from the work of Bartholomew (2011), generally regarded as the broadest and most accessible ethnographic study of basketball as a cultural phenomenon in the Philippines. Antolihao’s (2017) work examines the many entanglements between Filipinos and basketball through various lenses. The social dynamics of nationalism, race, and sport in the local context are also informed by the studies of Rehal (2020) and Ponce de Leon (2018) on the matter, as they delve into the specific treatment of Black bodies in Philippine media and the dynamics of having players of mixed ethnicities in the national football team, respectively.Footnote 6

American colonizers introduced basketball to the “savage natives” of the Philippines in the early 1900s. The game began as a missionary schoolyard pastime in the 1910s, and steadily grew in popularity as the sport of choice in the smaller urban spaces populated by the social elite.Footnote 7 The Americans hoped that sports, in a multi-prong approach including modern infrastructure and social services, would lead to health and nutrition, as well as evangelization, discipline, teamwork, and nation-building for a people reeling from over 300 years of Spanish rule.Footnote 8

The Philippine men’s basketball team’s fifth place finish during their Olympic debut in 1936 cemented the sport’s status as a source of national pride.Footnote 9 As of 2022, the team has yet to return to the Olympics, and every iteration of the Summer Games renews debates on whether the country might win more medals if resources were diverted to other sports, like weightlifting or boxing, instead of basketball.Footnote 10

Basketball was a unifying force in the Philippines through various milestones in the twentieth century: the modern sport of industrialization (versus the rurality of baseball, its brief rival); a salve for the wounds of World War II; an uncontested site in the Cold War propaganda battles; a spectacle for the masses propagated by (and a reflection of) the Marcos dictatorship; and a globalizing force in the country’s Hollywoodization through the United States’ National Basketball Association (NBA) and other popular media.Footnote 11

Before Ekwe’s arrival, the NCAA allowed up to 40 percent of an NCAA team to include foreigners.Footnote 12 In his wake, NCAA and UAAP teams raced to recruit FSAs at the center position as scorers, rebounders and interior defenders.Footnote 13 Some FSAs became stars whose teams’ fortunes rose and fell with them, and while having a good FSA did not guarantee wins, the association between them, and San Beda’s trophy case and the string of UAAP champions,Footnote 14 persisted. Further, the NCAA MVP award went to FSAs five times since Ekwe’s debut in 2006,Footnote 15 and five times from 2016 to 2022 in the UAAP.Footnote 16 Since 2012, at least one FSA made it to the UAAP and NCAA Mythical Five, peaking in 2016 with four FSAs in the NCAA’s Mythical Five.Footnote 17

Responding to the FSA trend, the UAAP reduced the number of FSAs (casually called “imports”) per basketball team from two (though only one could play at a time) to just one.Footnote 18 Ahead of its 2018 season, the NCAA announced that FSAs were banned altogether from all events starting in 2020.Footnote 19 “As of the moment, [FSAs have] done more harm than good [to] basketball”, said Fr. Vic Calvo, the NCAA management committee chair.Footnote 20

FSA supporters argue that they improve the level of competition,Footnote 21 and they also suggest that smaller schools benefit more from FSA recruitment, as they offset the loss of local recruits to the more affluent programs.Footnote 22 From this perspective, banning FSAs would condemn the amateur game to stagnation,Footnote 23 and that arguments against FSAs are misguided by the belief that local talent are inherently more deserving of opportunities for further success.Footnote 24 Finally, it would be ironic to deny FSAs a chance to play in the country when many Filipinos celebrate their compatriots playing in more competitive leagues abroad.Footnote 25

Arguments against FSAs include the fact that they stunt the development of local talent in the sense that they take scholarships, roster spots and playing time from locals at the same position.Footnote 26 FSA recruitment shifts collegiate leagues away from proving grounds for local upstarts towards win-at-all-costs enterprises.Footnote 27 FSAs are allegedly hired guns, loyal only to the highest bidder, which disturbs the leagues’ amateur status.Footnote 28 In that sense, there is an argument that there is a higher prestige to winning championships without FSAs, like how the Philippine Basketball Association (PBA), the leading local professional league, regards its all-Filipino tournament as more prestigious than those “reinforced” with imports.Footnote 29

These discussions center on deeper questions that extend beyond the games played on the court. Who belongs in the Philippine basketball community? For whom is Philippine basketball, and who gets to decide? Antolihao theorizes that Filipinos did not passively receive basketball into their culture as inevitable from colonial relations, otherwise, the Americans’ love for baseball should have also taken root. Rather, Filipinos vernacularized basketball which, like the Indians’ experience with cricket and the British empire, gave literacy of a foreign cosmopolitan culture, which in turn is hybridized into the Filipino identity.Footnote 30

On a related note, Bartholomew suggests that the strongest evidence of basketball’s deep cultural embeddedness and integration is the difficulty in articulating its importance in Filipinos’ lives, “as difficult to define as one’s core”.Footnote 31 On the international stage, the national team rallies around the cry of puso, which literally translates into “heart”, but also connotes a determination to exceed one’s limits, to triumph against overwhelming odds, whether in sport or in life, through the indomitable force of will.Footnote 32 In the Philippines it can seem that every alley, empty lot, park, plaza, pier, roof deck, warehouse, churchyard or mountainside is improvised as, if not eventually renovated into, a space for a pickup basketball game.Footnote 33 Bartholomew observes, however, that this nationwide passion has been leveraged not only into strong communal bonds, but also into corporate and political empires as conglomerates and politicians (including many ex-players) funnel money into goods, apparel, merchandise, professional teams and basketball courts as a cost-effective marketing and patronage strategy.Footnote 34

Filipinos collectively transformed basketball into a unique cultural phenomenon, part and parcel of themselves and the modernity of Filipino life. Ponce de Leon observes a parallel with Philippines’ national football team where Filipinos of mixed nationalities or ethnicities spark similar conversations on exclusion, belonging, and identity.Footnote 35 FIFA eligibility rules aside, players were judged by fans as either “Filipino enough” by the fact of their mixed heritage and decision to represent the country,Footnote 36 or “invaders” due to differences in ethnic features, geographical origin, and cultural upbringing.Footnote 37 Her study deconstructs the ways in which Filipinos perceive identity and belonging through sport.

But if basketball’s cultural assimilation was conscious and intentional, then its negative aspects are also there by design, whether consciously or otherwise. Ponce de Leon notes that sports is a site for conflating “nationalism (placing one’s country above others)… with national pride (a personal emotion linked to self-esteem), and national identity”.Footnote 38 This gives rise to situations in sport wherein structures are adopted which “transform […] race prejudice through the exercise of power against a racial group defined as inferior, by individuals and institutions with the intentional or unintentional support of the entire culture”.Footnote 39

3 Philippine Basketball Policies and Regulation

The anti-foreigner sentiments of the UAAP and NCAA were stoked by the events preceding the enactment of the Student-Athletes Protection Act (SAPA),Footnote 40 a law that curbed excessive residency rules on transferring athletes because universities wanted to “protect” their recruits from other programs who “pirate” their investments”.Footnote 41 The law set a compromise of a one-year residency due to UAAP officials’ appeals to counterbalance the allegedly exorbitant transfer offers and packages.Footnote 42 Thus, under the SAPA, schools also cannot give benefits “which are contrary to the nature of amateur sports and which may result in the commercialization of a student-athlete”.Footnote 43

Against this backdrop, the FSA bans were seen as an extension of the financial excesses that the SAPA sought to curb. Clamping down on FSA recruitment went hand-in-hand with curbing excessive amateur sports spending. As one columnist noted after UAAP MVP Ben Mbala led the De La Salle Green Archers to the championship in 2016:

Philippine college basketball has become so highly commercialized, so deeply committed to winning at all cost[s] that schools have thrown away any semblance of decency and sportsmanship to win championships. Blame San Beda for unleashing this monster, starting with the “hiring” of Sam Ekwe in 2006. San Beda had been without an NCAA title for 28 years until some of the school’s officials had this bright idea of bringing in an “import.”Footnote 44

FSAs were scapegoated for the national team’s winless performance in the 2019 FIBA World Cup. The squad was mostly composed of professional veterans, yet per House representative Michael Odylon L. Romero, amateur programs should have spent fewer resources recruiting FSAs to win tournaments, and instead reallocated efforts to developing local players to avoid future international embarrassment.Footnote 45

Representative Romero filed a resolution calling for a law that would prohibit all collegiate and university leagues from recruiting and fielding FSAs.Footnote 46 To him, local players are “victims” of FSAs who deserve “the chance to improve and compete to the best of their ability”.Footnote 47 No further action appears to have been taken on the measure, but Romero remains an influential voice, not only in the House of Representatives, but as one of the wealthiest people in the Philippines according to Forbes in 2020,Footnote 48 the owner of PBA team NorthPort Batang Pier, and a national polo athlete. In the context of how the sports community moves forward, his words carry deep significance.

Even the Senate seemed indirectly concerned with the effect of FSAs on the competitive balance in the UAAP. In 2019, the Samahang Basketbol ng Pilipinas (SBP), the national basketball federation, lobbied to grant Philippine citizenship to Angelo Kouame so he could join the national team as a naturalized player under FIBA rules.Footnote 49 Kouame was targeted because his stellar performance propelled the Ateneo de Manila University Blue Eagles to two championships. Yet Senator Edgardo Angara, SBP chair and sponsor of Kouame’s naturalization bill, asked, “If [Ateneo] were to get another import, would that not be fair to the rest of the league?” during the Senate’s deliberations.Footnote 50 The following season, the UAAP classified the newly ‘Filipinized’ Kouame as an FSA.Footnote 51 The extent to which Senator Angara’s remarks influenced the UAAP’s policy is unclear, but it furthers the theory of a common perception that foreigners, notwithstanding the legal fiction of citizenship, should be treated differently.

4 Impact of Discriminatory Treatment on FSAs

This section examines the impact of this discriminatory treatment of FSAs, combining media reports of these incidents with media analysis forwarded by Satwinder Rehal. This section also applies relevant legal principles to the factual background illustrated in Sect. 2. Using descriptive and interpretative analyses, it identifies the promising and challenging aspects of legal remedies to assist FSAs.

This chapter takes the view that Philippine basketball belongs to anyone who wishes to play, and arbitrary barriers against the free participation of FSAs should be dismantled. Race and/or national origin are not good enough reasons to deny anyone’s freedom to join a team and play, considering international law commitments to upholding human rights, including the principle of equality and freedom from discrimination; the constitutional guarantee of equal protection and strict scrutiny in favor of protected classes of persons, such as the youth; and equal protection-based actions against private persons. However, these cases either go beyond current developments in Philippine jurisprudence or legal theory, and/or are subject to countervailing principles which may be deployed to defend FSA restrictions.

Although they are the most affected by the UAAP and NCAA restrictions, many FSAs do not feel that they can speak freely on the issue. For example, Alfred Aroga, UAAP MVP and star of the National University Bulldogs’ championship run in 2014, declined to comment at the time that rumors of FSA bans were circulating because as a foreigner, what he says or does “has no impact”.Footnote 52 While at least one FSA has gone on record to call out these rules as racist,Footnote 53 others are just grateful for the scholarship, which they value above their playing experience.Footnote 54

Casual racism is not an uncommon experience for foreign players in the Philippines. In 2018, a group chat between members of a university-based fraternity was leaked. The messages revealed a picture of Bright Akhuetie, who debuted that year for the University of the Philippines Fighting Maroons, and a message referring to him as the team’s “pet gorilla”, with another member noting that he would make Akhuetie his ball boy if he was part of the fraternity.Footnote 55 Days before the conversation leaked, the UAAP named Akhuetie as the season MVP.

Black basketball players in the Philippines have experienced some form of racism.Footnote 56 Overt violence is rare, but there have been instances of hate speech and harassment from fans, competitors, and opposing coaching staff, including taunting words and gestures, and occasionally the n-word.Footnote 57 Support at the league level also seems insufficient, as leagues generally forbid detrimental conduct but have no specific prohibitions against discriminatory or racist behavior.Footnote 58 In 2014, the NCAA excluded FSAs from their All-Star game altogether, because allowing them to play would lead to an imbalanced exhibition game.Footnote 59 San Beda’s Ola Adeogun (who months earlier was verbally abused by an opposing staff member using a banana and animal gestures)Footnote 60 then Tweeted sarcastically that he and other FSAs “will be having [their] own [All-Star] game in Manila Zoo”.Footnote 61 Adeogun finished the year with Mythical Five honors, and San Beda a fifth straight championship.

Rehal argues that Philippine sports media is complicit in thematically reinforcing racism against FSAs and Black people in general.Footnote 62 Undertaking his own survey of sports reporting, Rehal notes that stories essentialize Black athletes by their “animalistic” physical prowess and other traits, in contrast to the diminutive Filipinos who take an intellectual, refined approach to basketball; FSAs are “tall and beefy”, possessing “limited basketball know-how”, and are “snared” to play under “patient Filipino coaches” against “graceful, high-flying and sharp shooting Filipino players”.Footnote 63 Rehal posits that this discourse is a redirection of the colonial discrimination that Filipinos suffered by the Spanish, Americans, and Japanese, and symptomatic of an attempt to assert racial and financial dominance through hypermasculinity.Footnote 64 As Filipinos now occupy the dominant, West-adjacent cultural position in basketball, they perpetuate the same methods of subjugation, “border[ing] on both fear and fantasy of African student-athletes”.Footnote 65

4.1 Legal Remedies for FSA Discrimination

Legal remedies, beyond creating a more inclusive environment in amateur basketball, could have a normative effect that reduces, if not eliminates, discrimination and mistreatment against FSAs. First, we identify international human rights instruments, constitutional litigation, and tort actions as key areas of law that may apply to the FSA situation. Second, we use descriptive analysis to illustrate the current state of those areas of law, including relevant cases decided by the Philippine Supreme Court. Third, considering that the FSA situation is novel in this jurisdiction, we provide interpretative analysis of their applicability to FSA exclusion by relying on the emerging analysis and/or synthesis of other scholars, and through a textual examination of these legal sources based on the current state of the law.

The Philippines generally regards itself as a dualist jurisdiction with regard to its treaty obligations, and thus requires legislation to make them applicable in the country.Footnote 66 The Philippines recognizes the inherent equality among all people and commits itself to realizing their equal treatment without distinction on the basis of immutable factors, including their national origin. The country considers itself bound by relevant instruments such as the Universal Declaration of Human Rights (UDHR),Footnote 67 the International Covenant on Civil and Political Rights (ICCPR),Footnote 68 and the International Convention on the Elimination of All Forms of Racial Discrimination (CERD).Footnote 69

Article 26 of the ICCPR exhorts each state-party to ensure that all persons within its jurisdiction are entitled to “equal and effective protection” against discrimination on any ground, including race or national origin. It is concerned with legal or factual discrimination in any field regulated by public authorities (i.e., legislation), such that any laws passed by state-parties should not contravene Article 26.Footnote 70 It is understood that “racial discrimination” in this context has the same definition as that under Article 1 of the CERD.Footnote 71 As the UAAP and NCAA are regulated by law (by the SAPA and the Commission on Higher Education),Footnote 72 it falls to Congress to prevent discrimination in law or in fact in that sphere of social or cultural life in line with the state’s obligation not to sponsor, defend, or support racial discrimination in any way, and to review, rescind or nullify contrary laws.Footnote 73 Under the CERD, differential treatment will constitute discrimination “if the criteria for such differentiation, judged in the light of the objectives and purposes of the Convention, are not applied pursuant to a legitimate aim, and are not proportional to the achievement of this aim”.Footnote 74

The CERD may be used to scrutinize FSA restrictions, similar to how the CERD has been invoked to challenge racial quotas in South African rugby (where quotas intended to encourage minority participation may lead to questioning the merits of those players counted under the quota).Footnote 75 One can argue that FSA restrictions do not seem legitimate as they boil down to Filipino exclusivity for its own sake. Assuming, arguendo, that legitimate aims exist, then these restrictions disproportionately affect FSAs of African origin—as it was their on-court excellence that prompted the FSA restrictions in the first place—and deny them the opportunity to participate in university-level sports. This is evidence of discrimination and shows that Congress has not complied with its ICCPR and CERD obligations.

Non-discrimination on this level, however, does not appear to be a priority. For over 50 years, the Philippines has implemented law that criminalizes the discriminatory acts in Article 4 of the CERD, but punishes them by only up to a year’s imprisonment—hardly a sign of commitment or a strong deterrence.Footnote 76 There are no Supreme Court decisions that cite the CERD or its implementing law to nullify racist policies or elaborate on its scope or application. In this regard, Ignatius Michael D. Ingles, a prominent sports law practitioner and observer in the Philippines, notes that the very provisions of the SAPA are evidence of discrimination in law; Sect. 4 states that the one-year residency rule is explicitly “without prejudice to the respective residency rules of athletic associations on student-athletes who are foreign imports”.Footnote 77 Ingles warns that this leaves the door open to justify other bans and restrictions, since the law explicitly allows for distinctions regarding residency, and implies that FSAs may be treated differently from Filipino student-athletes.Footnote 78

Ongoing attempts to codify the rights of student-athletes do not appear to include FSAs. For example, Senate Bill No. 286 (“An Act Providing for the Magna Carta of Student-Athletes”) proposes the following regarding equality for student-athletes and schools’ correlative duties:

Section 5.4(f): It is the right of the Student-Athlete to be treated with respect and dignity and be free from any form of discrimination on account of age, sex, gender, language, ethnicity, religion, ideology, disability, education and status.

Section 7.16: It is the duty of the schools and their officials to ensure that no Student-Athlete shall, on account of age, sex, gender, language, ethnicity, religion, disability, education and status, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any athletic program or activity.Footnote 79

The bill adopts the SAPA’s definition that a student-athlete may be someone who “has an intention to represent the school in an inter-school athletic program or competition”,Footnote 80 which should extend its coverage to FSAs. However, it may be argued that the bill could, ironically, reinforce the different treatment of FSAs: Senate Bill No. 286 does not recognize equality based on national or geographical origin which, unlike equality based on ethnicity, is recognized in other laws like the Magna Carta of Women.Footnote 81

It can also be said that the bill was meant only to strengthen the SAPA and did not intend to go so far as to recognize FSA equality. Considering this, it could be argued that, following the rule that ambiguities in a law’s intent and scope may be ascertained by examining contemporaneous events, legislative deliberations, and prior laws on the same subject matter,Footnote 82 an FSA has no demandable right to play in the NCAA or UAAP; whether under the SAPA, or if Senate Bill No. 286 should become law, since Congress only sought to expound on existing legislation and did not intend to recognize equality on the basis of national origin.

The extent and application of international human rights obligations to FSA discrimination is relevant as the Supreme Court of the Philippines cites several to buttress its decisions protecting and enhancing human dignity and reducing inequality, and the equal treatment of persons.Footnote 83 The Bill of Rights declares that no person “shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws”.Footnote 84 “All persons subjected to legislation shall be treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed, to prevent undue favor on the one hand, and hostile discrimination on the other”.Footnote 85

“A law or measure seeking to impose a classification must (1) rest on substantial distinctions; (2) be germane to the purposes of the law; (3) not be limited to existing conditions only; and (4) apply equally to all members of the same class.”Footnote 86 The Philippines’ equal protection jurisprudence reserves the highest level of scrutiny for classifications affecting suspect classes,Footnote 87 or fundamental rights:Footnote 88

There are three levels of scrutiny at which the Court reviews the constitutionality of a classification embodied in a law: a) the deferential or rational basis scrutiny in which the challenged classification needs only be shown to be rationally related to serving a legitimate state interest; b) the middle-tier or intermediate scrutiny in which the government must show that the challenged classification serves an important state interest and that the classification is at least substantially related to serving that interest; and c) strict judicial scrutiny in which a legislative classification which impermissibly interferes with the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class is presumed unconstitutional, and the burden is upon the government to prove that the classification is necessary to achieve a compelling state interest and that it is the least restrictive means to protect such interest.Footnote 89

The Supreme Court goes further, applying strict scrutiny to acts affecting “persons accorded special protection by the Constitution”,Footnote 90 as determined by specific recognitions or guarantees pertaining to them.Footnote 91 These are sectors of society for which the Constitution professes regard in their development, well-being, and protection, including women, indigenous peoples, workers, and the urban poor.Footnote 92 The youthFootnote 93 also enjoys an explicit constitutional guarantee in Article II, § 13, which declares that the State “recognizes the vital role of the youth in nation-building and shall promote and protect their physical, moral, spiritual, intellectual, and social well-being. It shall inculcate in the youth patriotism and nationalism, and encourage their involvement in public and civic affairs”.Footnote 94 Those provisions are traditionally regarded as “state policies” or simple instructions to the legislature to enact laws following those outlines, but not as independent sources or rights.Footnote 95

Nonetheless, the Supreme Court has occasionally declared or treated several state policies as self-executing.Footnote 96 These developments are the premise of Efren Resurreccion’s call to abandon the traditional view that reduces state policies to “mere platitudes”.Footnote 97 Rather, state policies should be seen as indicative of the intent with which the Constitution was ratified, and accorded with at least one of the following functions: to nullify state actions for affirmative protection; to complement other constitutional provisions from which a right invoked is derived; or to validate state actions consistent with constitutional mandates.Footnote 98 Those policies with nullifying functions are classified as “first-order state policies”, because they carry commands (e.g., “protect”) to the state from which individuals can claim a direct injury from an infringement of a constitutional right.Footnote 99 Resurreccion’s analysis is appealing to potential constitutional litigants because it implies that the words of the Constitution can provide powerful relief for a broad range of matters without further legislative enactment; he proposes that Article II, § 13, which contains the word “protect”, is one such policy.Footnote 100

Resurreccion cites Soriano v. Laguardia,Footnote 101 as an instance where Article II, § 13 was treated as self-executing. There, the petitioner’s daytime television show was suspended because he made obscene remarks. Soriano argued, inter alia, that the suspension constituted prior restraint. In its discussion on speech and censorship, the Supreme Court factored the state interest’s in protecting the youth under Article II, § 13 in determining that there was a permissible infringement on Soriano’s right to free speech:

Indisputably, the State has a compelling interest in extending social protection to minors against all forms of neglect, exploitation, and immorality which may pollute innocent minds. It has a compelling interest in helping parents, through regulatory mechanisms, protect their children’s minds from exposure to undesirable materials and corrupting experiences. The Constitution, no less, in fact enjoins the State, as earlier indicated, to promote and protect the physical, moral, spiritual, intellectual, and social well-being of the youth to better prepare them fulfil their role in the field of nation-building. In the same way, the State is mandated to support parents in the rearing of the youth for civic efficiency and the development of moral character.Footnote 102

The Supreme Court did not explicitly declare the right of the youth to protection as self-executing, but Resurreccion notes that it relied heavily on this state policy to dismiss Soriano’s claim that his rights were violated. Resurreccion further observes that while Article II, § 13 was invoked to validate the state’s suspension and censorship power, the Supreme Court did not deny its nullifying function, which may yet be demonstrated in a future case. For now, the fact that this state policy was weighed against the fundamental right to free speech is a sign that the youth’s right to protection has a “heightened importance” under the Constitution.Footnote 103

In this vein, it would seem that FSAs fall under the ‘youth’ protected by Article II, § 13. The Youth in Nation-Building Act (YNBA) states that “youth” may include persons in the 15- to 30-year-old range,Footnote 104 which would include FSAs. Thus, anti-FSA rules, with distinctions made based on race or national origin, can be seen as detrimental to the youth’s moral, intellectual, and social well-being; anti-FSA rules in educational institutions do not aid the youth for involvement in public and civic affairs. Following Resurreccion’s reading of Soriano v. Laguardia,Footnote 105 the nullifying functions of Article II, § 13 could be invoked to strike down FSA restrictions.

However, it should be noted that Soriano v. LaguardiaFootnote 106 primarily dealt with the state’s power to penalize on-air obscenities. The case could have been resolved within the framework of free speech, and any pronouncements regarding the right of the youth to state protection should be treated as obiter dicta. Moreover, the ‘youth’ should arguably be defined on a case-to-case basis by Congress,Footnote 107 and not by reference to existing laws such as the YNBA. Any argument to include student-athletes and FSAs under the “youth” category in Article II, § 13 hinges on a liberal interpretation of the term, before proceeding to convince the courts of the merits of Resurreccion’s theory on the actionability of state policies.

Article 32 of the Civil Code provides a tort action against private individuals who directly or indirectly obstruct, defeat, violate, or in any manner impede or impair the rights and liberties of another person, including “the right to the equal protection of the laws” and other rights under the Bill of Rights.Footnote 108 This provision deters the “subtle, clever and indirect” rights violations outside of penal laws, recognizing that, “it is in these cunning devices of suppressing or curtaining freedom, which are not criminally punishable, where the greatest danger to democracy lies”.Footnote 109 Article 32 adopts the common law elements of this action:

  1. 1.

    A duty or obligation recognized by law, requiring a person to conform to a certain standard of conduct, for the protection of others against unreasonable risks;

  2. 2.

    Failure on the person's part to conform to the standard: a breach of a duty;

  3. 3.

    A reasonably close causal connection between the conduct and resulting injury; (i.e., legal or proximate cause); and

  4. 4.

    Actual loss or damage resulting to the interests of another.Footnote 110

As discussed above, FSA restrictions fall along the lines of race, national origin, or alienage, and should be evaluated under strict scrutiny. In applying strict scrutiny, the usual presumption of the constitutionality of a law or other regulation is reversed. The government must demonstrate that the law is (1) necessary to achieve a compelling (i.e., beyond merely reasonable) government interest, and (2) the least restrictive means to achieve that result.Footnote 111 That standard, however, applies to acts of the state. There is no precedent of the test applied to private persons since the Civil Code’s effectivity in 1950.

One case has applied equal protection analysis to private acts affecting a constitutionally protected class. In Int’l. Sch. Ass’n of Educators v. Quisumbing,Footnote 112 the petitioner was a teacher’s union that, in a bargaining dispute, assailed the discrepancy in the salaries between its Filipino and foreign teaching staff. Apart from citing labor laws on equal work for equal pay, the Supreme Court emphasized the constitutionally protected status of workers to nullify the school’s policy:

In this case, we find the point-of-hire classification employed by respondent School to justify the distinction in the salary rates of foreign-hires and local hires to be an invalid classification. There is no reasonable distinction between the services rendered by foreign-hires and local-hires. The practice of the School of according higher salaries to foreign-hires contravenes public policy and, certainly, does not deserve the sympathy of this Court.Footnote 113

This case is a starting point for different lines of analysis. First, Casis suggests that Int’l. Sch. Ass’n of Educators v. Quisumbing,Footnote 114 which cites the UDHR, ICCPR and CERD, is evidence that courts recognize non-discrimination as customary international law, which the Constitution then incorporates as part of the law of the land,Footnote 115 and therefore directly actionable before Philippine courts.Footnote 116 However, this is susceptible to differing, sometimes conflicting, approaches to locating international law within the Philippine domestic legal order.Footnote 117

Second, one could extend Int’l. Sch. Ass’n of Educators v. QuisumbingFootnote 118 to argue a claim for damages under Article 32, such that the salary classification burdened the constitutionally-protected worker class, and requires the school to show a compelling state interest to justify the classification and show that it was narrowly tailored. Applying this to FSAs, schools and athletic associations may be asked to defend why their classifications creating a suspect class (e.g., based on race or nationality distinctions) should be maintained under strict scrutiny. Nonetheless, schools and athletic associations can claim to only be furthering the state’s interest in regulating immigration and education, which generally already impose different standards and requirements on foreigners (e.g., the SAPA and immigration laws),Footnote 119 and are not at fault for acting within law. Moreover, they can forward their own qualitative and quantitative analyses, as to how FSAs negatively impact local athletes or development programs to justify an interest in excluding FSAs in favor of Filipino student-athletes.

Third, Article 32 is a potential vehicle to operationalize international non-discrimination obligations in domestic law. For example, plaintiffs in Japan have convinced Japanese courts to use the CERD as a supplementary reference in equality and minority rights tort claims.Footnote 120 Like the Philippines, Japan ratified the CERD but has no anti-discrimination legislation, leading its courts to take a freer hand in resolving discrimination disputes by applying the treaty’s standard of discrimination to interpersonal relationships.Footnote 121 In this regard, nothing prevents Philippine courts from taking a similar approach, as decisions of foreign courts have persuasive authority domestically.Footnote 122 A case could be made that, to arrive at a standard for equal protection in private relations, international non-discrimination principles should be consulted. Adopting the discussion on the CERD above should lead to a similar conclusion here.

Japanese precedents, however, have ruled against non-discrimination plaintiffs based on reasonableness, analogous to rational basis scrutiny in American jurisprudence. They have also found that the freedoms of assembly and association justify excluding persons of different ethnic backgrounds.Footnote 123 This would lower the threshold to justify the FSA rules, and would anchor it to another constitutional right. Necessarily, this approach would add the question of balancing associative interests and the state interest in eradicating discrimination,Footnote 124 adding to the list of constitutional questions that have hitherto not been resolved by Philippine courts.

5 Conclusion

It is not clear if there is any incentive within the Philippine basketball scene to keep FSAs, as they seem to be merely a desirable and not an intrinsic feature of the sport. To illustrate, the FSA pool is not a national team recruitment pipeline, notwithstanding Kouame’s naturalization; in the past, the national team has recruited professional journeymen from overseas to fill roles. For similar reasons, PBA teams, which can field foreigners in certain tournaments, would rather recruit professional journeymen to make an immediate impact rather than develop an FSA into a professional-caliber player.Footnote 125 Schools have also pivoted to recruiting more Filipinos with mixed heritage, particularly those who have US amateur experience, to upgrade their rosters and whose heritage shields them from the “foreigner” label. Fans may ultimately accept moving on from FSAs, who may not have been around long enough to be considered integral to the basketball community.Footnote 126 If anything, the “mercenary” narrative and the Kouame situation suggest that many Filipinos view foreigners’ place in the sport as mostly transactional and not core to its fabric.

These signs, however, should not mean that advocating for FSAs is a lost cause, especially when popular foreign athletes identify or are welcomed as “Filipino at heart”,Footnote 127 a connection that Senator Angara highlighted, ironically, to campaign for Kouame’s naturalization.Footnote 128 This shows that Filipinos are able to welcome foreign athletes. Moreover, it is conveniently omitted in the popular discourse that not all FSAs came to the Philippines specifically to play sports like basketball. Anti-FSA policies would deny a contingent of foreign students in other sports the opportunity to not only play and excel, but also to fully embrace the collegiate, academic experience.Footnote 129

At the very least, challenging institutional barriers to the movement of foreign talent, such as the case of Union Royale Belge des Societes de Football Association ASBL v. Bosman,Footnote 130 can propel amateur basketball to new competitive heights, such as that of European football.Footnote 131 As Calsado-Amoroso and Balisong argue, “a xenophobic league breeds xenophobic fans”.Footnote 132 The UAAP and NCAA should be seen as valuable partners to contest regressive perspectives on race. It is hoped that, insofar as laws are tools to encourage or discourage behavior,Footnote 133 this chapter supports the idea that sport is an area that embraces equality and non-discrimination.